Articles Posted in New Cases

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
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No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

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For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder.  In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense.  Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside.  Charge II and its sole specification (false official statement) are dismissed with prejudice.  A rehearing on the remaining charges is authorized.”

1.  On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”

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The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

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The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date?  Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause.  See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

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In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners:  what are the “rules” and standards for IAC in regard to pretrial negotiations.

Lafler v. Cooper and Missouri v. Frye.

the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

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The NMCCA has issued a published opinion in United States v. Walker.  This case began its appellate life with a death penalty sentence.

In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications.  We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing.  Id. at 757.  At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder.  The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand. 

I take this to be Life, not LWOP; which NMCCA has affirmed.

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NMCCA has decided United States v. Walton.  In that case they dismissed an adultery and indecent language conviction based on Fosler, without discussion of the issue.  I sort of assume they feel comfortable that Lansford,  Gibson (which I posted here) and Leubecker (which I posted here) sufficiently explain NMCCA’s thinking on how to deal with Fosler.

However, I would note that Walton was a fully contested rape case which resulted in a NG on the rape.  I was the defense counsel (and no I didn’t file a motion).  We were too busy with the false rape allegation.  (The “rape victim” called her friend after the sex, appeared to say she liked it, “and would do it again.”  When she and accused were investigated for alcohol and fraternization the “victim” admitted consensual sex, or words to that effect.  After she was advised of a potential summary court-martial and shortly after the erroneous (IMHO) sexual assault training, the “victim” claimed rape.)

Anyway, the point about NMCCA’s decision is that it was a contested case, not a guilty plea case like Lansford, Gibson,and Leubecker, and the issue wasn’t raised at trial.  It appears that NMCCA will rely on the same rationale as they have expounded for guilty plea cases?  Keep in mind that this was a clear fraternization case, albeit beginning as a false rape allegation.

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CAAF has decided three cases, Blazier of course being one of them.  I was the trial defense counsel in the case so no comment from me on the case so far.  Here is the brief for petitioner in Bullcoming v. New Mexico.  Professor Friedman has posted this at his excellent confrontationblog site.  I had anticipated CAAF might await a decision in Bullcoming.  But, in discussions with DMLHS last night it appeared that Bullcoming wouldn’t likely be argued until early 2011, and there are a potential lot of military cases building up.

United States v. Staton decided this issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.

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There are several decisions:

United States v. Sanchez is back with the same result.  There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial.  Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.”  Thus the “advice” has been moved behind closed doors.  Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown.  Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice.  So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give.  What a cure.  But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR.  A tasker for the chief defense counsels at their next annual meeting.  Have the paralegal go through the ROT and other documents and basically fill in the data.  The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff.  For that matter, why not start the document prior to trial.  That way you can prepare for trial better.  You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further.  The AF has a good start with their PDS that’s prepared for court.

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